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Registration No. 333-_______, Filed ___________, 1997
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NETMANAGE, INC.
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(Exact name of registrant as specified in its charter)
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Delaware 77-0252226
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
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10725 North De Anza Boulevard
Cupertino, California 95014
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(Address of principal executive offices) (Zip code)
NETMANAGE, INC.
1992 STOCK OPTION PLAN
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(Full title of the plan)
Zvi Alon
Chairman of the Board, President
and Chief Executive Officer
NetManage, Inc.
10725 North De Anza Boulevard
Cupertino, California 95014
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/973-7171
This registration statement, including all exhibits and attachments, contains 9
pages. The exhibit index may be found on page 7 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share1 price1 fee
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Common Stock 2,000,000 $2.88 $5,760,000.00 $1,745.45
Par Value $0.01
(including options
to acquire such
Common Stock)
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_________________________________________
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
NetManage, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1996 as filed with the Commission on
March 31, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
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1 Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The offering price is based upon the average of the high and
low prices of the Common Stock on March 27, 1997 as reported on the National
Association of Securities Dealers Automated Quotations System.
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(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on August 2, 1993 under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be a part hereof from the date of filing of
such documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's Bylaws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. The
Bylaws also require the Company to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the
indemnified party to repay such advances if it is ultimately determined that
the indemnified party is not entitled to indemnification.
The Company's Certificate of Incorporation, as amended, provides that
the liability of its directors for monetary damages shall be eliminated to the
fullest extent permissible under Delaware law. Pursuant to Delaware law, this
includes elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Company, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
any transaction from which the director derived an improper personal benefit,
and for payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Company has entered into agreements with each of its directors and
executive officers to indemnify such persons against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Company or any of it affiliated enterprises, provided
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such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company and, with respect
to any criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
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(b) Filing incorporating subsequent Exchange Act documents by
reference
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cupertino, State of
California, on April 2, 1997.
NetManage, Inc.
By: /s/ Zvi Alon
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Zvi Alon, Chairman of the Board,
President and Chief Executive Officer
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POWER OF ATTORNEY
The officers and directors of NetManage, Inc. whose signatures appear
below, hereby constitute and appoint Zvi Alon and Walter Amaral, and each of
them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of
the undersigned any amendment or amendments to this registration statement on
Form S-8, and each of the undersigned does hereby ratify and confirm all that
each of said attorney and agent, or their or his substitutes, shall do or cause
to be done by virtue hereof. Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the
following persons in the capacities indicated on April 2, 1997.
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Signature Title
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/s/ Zvi Alon
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Zvi Alon Chairman of the Board, President and
Chief Executive Officer (Principal Executive
Officer)
/s/ Walter D. Amaral
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Walter D. Amaral Chief Financial Officer and Vice President,
Finance and Secretary (Principal Financial
and Accounting Officer)
/s/ John Bosch
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John Bosch Director
/s/ Uzia Galil
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Uzia Galil Director
/s/ Shelley Harrison, PhD.
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Shelley Harrison, PhD. Director
/s/ Darrell Miller
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Darrell Miller Director
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EXHIBIT INDEX
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Sequentially
Numbered Page
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4.1 Amended Certificate of Incorporation of the Company is --
incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 filed with the
Securities and Exchange Commission effective July 24, 1993,
as amended effective September 23, 1993
4.2 Bylaws of the Company are incorporated by reference to --
Exhibit 3.2 to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission
effective July 24, 1993, as amended effective September 23,
1993
5 Opinion re legality 8
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Arthur Andersen LLP 9
24 Power of Attorney (included in signature pages to this --
registration statement)
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GRAY CARY WARE & FREIDENRICH, A PROFESSIONAL CORPORATION
Attorneys at Law
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Tel (415) 328-6561
Fax (415) 327-3699
EXHIBIT 5
Our File No.
1140392-902900
1140392-902200
April 1, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for NetManage, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 2,000,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of outstanding options granted under the NetManage, Inc. 1992
Stock Option Plan (the "Plan"). We have examined all instruments, documents
and records which we deemed relevant and necessary for the basis of our opinion
hereinafter expressed. In such examination, we have assumed the genuineness of
all signatures and the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies. We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California, the corporation laws of the State of Delaware and the federal law
of the United States. As to matters of Delaware corporation law, we have based
our opinion solely upon our examination of such laws and the rules and
regulations of the authorities administering such laws, all as reported in
standard, unofficial compilations. We have not obtained opinions of counsel
licensed to practice in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the 2,000,000
shares of Common Stock which may be issued upon exercise of the options under
the Plan are duly authorized shares of the Company's Common Stock, and, when
issued against receipt of the consideration therefor in accordance with the
provisions of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
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GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 22, 1997
(except with respect to the second paragraph of Note 4, as to which the date is
March 21, 1997) included in NetManage, Inc.'s Form 10-K for the year ended
December 31, 1996, and to all references to our Firm included in this
registration statement on Form S-8.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Jose, California
April 2, 1997
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